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THE FACT THAT THE SENTENCING COURT IN 2016 DID NOT USE DEFENDANT’S 2006 CONVICTION TO ENHANCE HIS SENTENCE DID NOT REQUIRE THE SORA COURT TO IGNORE THE 2006 CONVICTION WHICH WAS NEVER DIRECTLY ATTACKED AS UNCONSTITUTIONAL AND WAS NEVER VACATED; THEREFORE THE 2006 CONVICTION WAS PROPERLY RELIED UPON BY THE SORA COURT TO ASSESS DEFENDANT A LEVEL THREE RISK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined the fact that the resentencing court in 2016 found defendant’s 2006 conviction by guilty plea “constitutionally infirm” for purposes of sentencing did not require the SORA court to ignore the 2006 conviction. Defendant had never directly attacked the constitutionality of the 2006 conviction:

Defendant’s reliance on the resentencing court’s collateral determination that his 2006 conviction cannot be used as a predicate to impose an enhanced sentence is misplaced. As the resentencing court explained, it lacked authority to vacate the 2006 conviction and instead properly stressed that its determination governed only the question of whether the People could use the conviction to establish defendant’s status as a second child sexual assault felony offender for purposes of sentencing. Furthermore, at the resentencing hearing, defendant bore the burden of offering substantial evidence that the 2006 conviction is constitutionally infirm … . If defendant directly challenged the conviction’s constitutionality, however, he would face a higher burden of proof … . No court has determined that defendant’s 2006 conviction is unconstitutional or otherwise invalid under that more demanding standard. Nor have the People had an opportunity to be heard in opposition to defendant’s attempt to make such a showing. Against this backdrop, it is logical for the Guidelines to require an offender with a prior felony sex offense conviction to satisfy the higher evidentiary burden that they must meet to vacate or reverse that conviction, if they wish to avoid the override’s application.

Given that defendant failed to pursue any procedural pathway to vacate the 2006 conviction, we see no reason to depart from the Guidelines’ text stating that the override is triggered if “[t]he offender has a prior felony conviction for a sex crime” (Guidelines, override 1). We therefore apply the Guidelines and hold that the override was properly implemented … . People v Moss, 2025 NY Slip Op 01673, CtApp 3-20-25

Practice Point: The fact that a sentencing court found a prior conviction “constitutionally infirm” such that the conviction was not used to enhance defendant’s sentence did not require that the SORA court ignore the prior conviction. The SORA court properly relied upon the prior conviction here.

 

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